Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims

Abstract

In recent years, courts have been called on to adjudicate a new series of cases involving vote denial — practices that prevent individuals from casting a ballot or having that ballot counted. The upsurge in cases claiming vote denial (as opposed to vote dilution) is the product of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and to cut back on expansions previously implemented by Democrats.

How should courts analyze these claims under the Voting Rights Act? Recently, the courts have appeals have begun to coalesce on a two-part framework: First, the challenged practice “must impose a discriminatory burden on members of a protected class, meaning that members of the protected class ‘have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.’” Second, “that burden ‘must in part be caused by or linked to “social and historical conditions” that have or currently produce discrimination against members of the protected class.’” But they continue to recognize that their inquiry must be shaped by the statute’s totality of the circumstances requirement and show be informed by a series of factors laid out by the Supreme Court and Congress in the context of vote dilution claims.

This article explores how those factors should work in vote denial cases. First, neither an actual nor a predicted decrease in minority turnout should serve as a necessary precondition to a section 2 results claim alleging vote denial. There are theoretical, doctrinal, and practical reasons for treating election results as a relatively minor consideration with respect to the discriminatory burden prong of the emerging framework. If anything, data or predictions about turnout effects are more relevant to the question whether the challenged practice is tainted by an impermissible purpose than they are to determining the existence of a discriminatory burden.

Second, courts in section 2 vote-denial cases should be guided by the Voting Rights Act’s overall commitment to expanding the opportunity for minority citizens to participate in the political process. Particularly when confronted with a challenge involving a provision that reduces preexisting opportunities to vote, courts should not hesitate to find that the new provision constitutes a “burden” under the emerging framework. Giving evidentiary weight to the existence of a change does not impermissibly import the retrogression standard of section 5 into section 2.

Third, whether the policy underlying the challenged practice is “tenuous” (the final Senate Report factor) of necessity plays a more central role in vote denial cases than it has in vote dilution cases. This does not transform the results test into a purpose inquiry; rather, it is a question of the fit between the policy and the burden. The strength of the government’s proffered policy justifications goes to the heart of whether the practice imposes a burden and whether that burden is discriminatory. More particularly, in vote denial cases, partisan motivations, regardless of whether they rise to the level of an independent constitutional violation or suffice to prove a racially discriminatory purpose, are tenuous as a matter of law and should impose a burden of justification on a defendant jurisdiction.

Keywords: Voting Rights Act, Vote Denial, Section 2, Turnout, Tenuousness

JEL Classification: D63, D72, K3